James Lawrence Tibbs v. State ( 1995 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00108-CR



James Lawrence Tibbs, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. 0934154, HONORABLE LARRY FULLER, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of aggravated kidnapping and assessed punishment at imprisonment for sixty years and a $5000 fine. Penal Code, 63d Leg., R.S., ch. 399, sec. 1, § 20.04, 1973 Tex. Gen. Laws 883, 915 (Tex. Penal Code Ann. § 20.04, since amended). Appellant's two points of error complain of the prosecutor's jury argument at the guilt stage of trial.

At the conclusion of his argument, defense counsel observed, "There will not be a matter of greater importance to James Tibbs, who stands where any man stands who is accused of something he didn't do." Counsel asked the jury to carefully consider the evidence and "when you have done that, what we ask you to do is come in and send him home. Find him not guilty."

The prosecutor responded to these remarks by saying:

And yes, as Mr. Sawyer says, this trial is important to his client, Mr. Tibbs, but there is more than one party to this lawsuit. The other party is the citizens of Travis County. The other party is the community, and what do you do when you have two parties, you have two competing interests? It is in Mr. Tibbs' interest to go home. It is in Mr. Tibbs' interest to walk down and get on that elevator with you when you leave, but is that in the community's interest? Is that the kind of thing that would make you proud of your service? Would you be proud? What would you think of your service if in a few months from now you read of another kidnapping in which Mr. Tibbs is arrested.

Appellant objected that the argument was outside the record. Without ruling on the objection, the district court instructed the jurors to "base your decision on what you have heard from the witness stand." Appellant's motion for mistrial was overruled.

Appellant now contends that the prosecutor's reference to another kidnapping was outside the record, asked the jury to speculate about appellant's future conduct, attempted to inject punishment issues into the guilt stage, and was designed to inflame the jury's passions and deny him a fair trial. The State responds that the argument was a proper plea for law enforcement. We agree with the State.

Appellant asserts that the argument in this cause is "strikingly similar" to that condemned in Melton v. State, 713 S.W.2d 107 (Tex. Crim. App. 1986). In that case, a prosecution for theft of three pieces of construction equipment, the prosecutor told the jury, "People, do you understand the quantity of what we're dealing with here today? Do you understand there is over three hundred Case backhoes out there missing . . . ?" Id. at 114. This argument was criticized as a blatant attempt to persuade the jury that the defendants were guilty of other offenses than those for which they were on trial and as to which there was no evidence. In another case cited by appellant, Wright v. State, 609 S.W.2d 801 (Tex. Crim. App. 1981), the prosecutor suggested to the jury that the defendant, whom they had found guilty of unauthorized use of a vehicle, had intended to commit aggravated robbery or even capital murder. The court reversed, holding that the argument, which was without support in the evidence, was calculated to inflame and prejudice the defendant in the minds of the jury. We find these cases to be distinguishable, as the prosecutor in this cause did not suggest that appellant was guilty of other crimes.

Appellant also relies on the opinion in McClure v. State, 544 S.W.2d 390 (Tex. Crim. App. 1976). In that case, the prosecutor asked the jury to convict the defendant of the charged offense rather than a lesser included offense because the applicable punishment was greater. The court held that it was improper for the prosecutor to refer to the possible punishment during his argument at the guilt stage. Again, the cause before us is distinguishable. No lesser included offense was submitted to the jury in this cause and the prosecutor did not attempt to discuss punishment issues during his argument.

In Cook v. State, 858 S.W.2d 467, 477 (Tex. Crim. App. 1993), this argument was held to be a proper plea for law enforcement: "How many wives are going to have to shed the tears that [the decedent's wife] did? How many people are going to be kidnapped at knifepoint or beaten over the head with a tire tool?" In Starvaggi v. State, 593 S.W.2d 323, 328 (Tex. Crim. App. 1979), the prosecutor was held to be pleading for law enforcement when he argued: "I just say this, that I hope he doesn't come knocking on one of your doors at eight o'clock in the evening." We find the comments of the prosecutor in this cause to be similar to but far milder than those approved in the cited cases.

In his argument, defense counsel characterized appellant as an innocent man wrongly accused and asked the jurors to "send [appellant] home." The State was entitled to respond to this argument by urging that the evidence showed appellant to be a kidnapper and reminding the jurors that an acquittal would return appellant to the street. Finding no error, we overrule points of error one and two.

The judgment of conviction is affirmed.

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed: March 1, 1995

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